Court upholds Lagos council chair’s election

It was jubilation at the Local Government Election Appeal Tribunal sitting at the Lagos State High Court, Igbosere, yesterday. The court declared Action Congress of Nigeria (ACN) candidate, Dr Augustine Arogun winner of the Agbado-Okeodo chairmanship election held on October 22, 2011.

It set aside the November 22, last year judgment of the Election Petition Tribunal (EPT), which held that Otunba Busari Akande of the Peoples Democratic Party (PDP) won the poll.

The tribunal said the respondents had no one to blame but themselves.

The court was filled to the brim with ACN and PDP supporters. Joyous shouts of victory rang out following the verdict.

Many, including old men and women, were on their feet in the court for shortage of seats. Some sat on the floor. Policemen eventually asked some of them to move outside.

The Lagos State Independent Electoral Commission (LASIEC) declared Arogun winner at the end of voting, but Akande challenged the victory at the EPT (lower tribunal) and won.

The EPT, led by Justice Ade Owobiyi (rtd), voided the Certificate of Return which LASIEC issued the ACN candidate, holding that Akande polled the highest number of valid votes in the election. Dissatisfied with the decision, Arogun and LASIEC appealed.

In a unanimous decision, the five-man Appeal Tribunal, led by Justice Opeyemi Oke, the third most senior judge in the Lagos State judiciary, described the EPT’s verdict as an error.

A member of the panel, Justice Kazeem Alogba, who read the lead judgment, said proceedings at the lower tribunal, were a nullity.

He said the hearing and determination of the petition at the EPT went beyond the 30-day limit provided under Section 14 (1) of the Local Government Election Tribunal Law.

Justice Alogba held that it was “miscarriage” of justice for the tribunal to deliver judgment when the respondent did not make any application for extension of time.

He said the petitioners (Akande and PDP) were “not entitled to complain about any misdirection by the lower tribunal.”

He noted that Section 14(1) of the law made it mandatory for petitions to be heard within 30 days.

Such provision, he added, could not be waved aside without an application for extension of time.

“The lower tribunal ought to have observed that its proceedings lasted more than 30 days and ought to have asked parties to address it (tribunal) on the issue since there was no application for extension of time before it to regularise the proceedings.

“Sentiments should not be introduced into law especially when the jurisdiction of court is involved. The judgment of the tribunal is set aside and the appeal allowed,” he said.

At the hearing of the appeal, LASIEC’s lawyer Mr Oladapo Akinosun and Arogun’s counsel, Mr Kunle Adegoke argued that the EPT lacked jurisdiction to deliver the judgment.

Akinosun said the law stipulated that a petition must be heard and dispensed with within 30 days, unless the petitioner filled a motion in writing seeking an extension of time.

“The issue of timing must be strictly adhered to,” Akinosun said, adding that the petitioner did not obtain such extension.

Jurisdiction, he said, was a creation of statute and could not be conferred by the court, which he noted the EPT tried to do even when it did not receive any express application for time extension.

On the issue of fair hearing which the PDP raised, Akinosun said it was only applicable when a petition is still alive.

“In this case, there was no petition since there was no application for extension of time when the 30 days lapsed. We urge your Lordships to dismiss the judgment of the EPT and uphold our appeal. The judgment of the lower tribunal was entered in error and should be set aside,” the lawyer added.

ACN’s lawyer Mohammed Ajibola (SAN) also urged the court to uphold the appeal.

But Counsel for the PDP and Akande Otunba Kunle Kalejaiye (SAN) said the respondents filed a preliminary objection on the competence of the appeal.

Urging the court to dismiss it, he said Section 36 of the 1999 Constitution superseded any law, such as Section 14 (1) of the Local Government Election Tribunal Law, which imposes time limit on determination of election petitions.

“The intention of the makers of the law is to provide an avenue for ventilation of election grievances. Therefore, any legislation that curbs the exercise of judicial powers would be null pursuant to Section 36 of the Constitution. We urge your lordships in the circumstances to dismiss the appeal and uphold the decision of the lower tribunal,” Kalejaiye said.